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ASSET
PROTECTION
(continued)
C. Exempt Personal
Property In Texas
Personal properties of
various categories are considered exempt up to a total fair market value
of $60,000 per family or $30,000 per single adult who is not part of a
family. The following
personal property is exempt from garnishment, attachment, execution or
other seizure as follows: $60,000 (or $30,000 for a single person)
exclusive of the amount of any liens, security interests or other
charges encumbering the property. If the personal property exceeds the
statutory exemption amount, the head of the family or the person
entitled to the exemption may designate which property they desire to
have the exempt status and which property should be non-exempt.
The property that is
exempt includes the following:
1). Current wages for
personal services & court ordered child support payments;
2). Professional
prescribed health aids of a debtor or a dependent of a debtor (this
section does not prevent seizure by a secured creditor with a
contractual landlords lien for the security and the property to be
seized);
3). Unpaid commissions
for personal services, not exceed 25% of the aggregate limitations
described above;
4). Home furnishings,
family heirlooms, provisions for consumption;
5). Farming or
ranching vehicles and implements;
6). Tools &
miscellaneous equipment;
7). Books;
8). Apparatus
including boats and motor vehicles used in a trade or profession;
9). Wearing apparel
& jewelry not to exceed 25% of the aggregate limitations (the
$60,000 or $30,000 amounts);
10). Two firearms;
11). Athletic and
sporting equipment including bicycles, a two wheeled, three wheeled or
four wheeled motor vehicle for each member of a family or single adult
who have a drivers license or does not hold a drivers license but relies
on another person to operate the vehicle for the benefit of the non
licensed person;
12). The following
animals and foliage on hand for their consumption: a. two horses, mules,
donkeys and a saddle, blanket and saddle for each; b. twelve head of
cattle; c. sixty head of other types of livestock; d. 120 cows; e.
household pets;
13). The present value
of any life insurance policy to the extent that a member of the family
of the insured or dependent, a single insured adult claiming the
exemption as a beneficiary of the policy.
14). Retirement plans:
In addition to the exemptions described above, a person's right to the
assets held or to receive payment, whether vested or not, under any:
a. stock, bonus,
pension, profit sharing or similar plan,
b. retirement plans
for self employed individuals or any annuity or similar contract
purchased with assets distributed from that type of plan and under any
retirement annuity or account described by Section 403 (of the Internal
Revenue Code 1986) and under any individual retirement account or any
individual retirement annuity including a simplified employee pension
plan is also exempt from attachment from any execution and seizure for
the satisfaction of debts unless the plan, contract or account does not
qualify under the applicable provisions of the Internal Revenue Code.
D.
Designation Of Your Homestead
For urban properties,
the head of the household may voluntarily designate not more than one
acre of the property as the homestead.
If a rural homestead is part of 4 or more parcels containing a
total of more than 200 acres, the head of the family if married, may
voluntarily designate not more than 200 acres of property as the
homestead.
To designate the
property as a homestead the person must make the designation in a
properly completed instrument that is signed and acknowledged or
approved in a manner required for the recording instruments, i.e.
notarized. A person
must file the designation with the county clerk of the county in which
all or part of the property is located.
E. Designation Of A
Homestead After A Judgment Has Been Obtained
If a judgment has been
obtained against you, the creditor may take steps to collect or enforce
the judgment. Once a judgment has been obtained, the creditor can file
notice of the judgment thirty days after the judgment becomes final.
This filing is called an " Abstract of Judgment".
If the creditor has
requested an execution of judgment to be issued against you (if you are
a judgment debtor) and if you own a homestead you must protect your
homestead by filing a Voluntary Designation of your homestead under
Section 41.005 of the Texas Property Code.
If you have not
designated your homestead, the judgment creditor may give you, the
judgment debtor, notice to vacate your homestead as defined in Section
41.002 of the Texas Property Code. The notice shall state that if the judgment debtor fails to
designate the homestead within the time allowed by Section 41.002 of the
Texas Property Code, the court will appoint a commissioner to make the
designation at the expense of the judgment debtor.
At any time before
10:00 am on the Monday next after the expiration of 20 days after the
date of the service of the notice to designate (the general time period
allowed for answering lawsuits), the judgment debtor must designate the
homestead as defined in Section 21.002 Texas Property Code by filing a
written designation, signed by the debtor in front of the justice or the
clerk of the court from which the writ of execution is issued, together
with the legal description or area designated as your homestead.
F. Sale Of The
Excess Of The Homestead
An constable or
officer may sell the part of your property which exceeds the homestead
exemption, (if your property exceeds the statutory allowance). The sale
can be conducted pursuant to the holding an execution (a sale of your
property).
G. Liability For
Community Debts
Debts which are
incurred during a marriage are presumed to be on community credit and
are presumed to be community obligations unless it is shown that the
creditor agreed to look solely to the separate estate of the person who
took out the loan. Therefore, the community interest may be subject to
satisfaction of the debt.
H. Garnishment Of
Bank Account Proceeds To Satisfy A Judgment
Garnishment involves a
legal procedure whereby a person who is owed money, typically in the
form of a judgment, is entitled to seize and collect assets that are
owed to the judgment debtor. Garnishment can occur on property owned
directly by the debtor or property held by a third person that is owned
by the judgment debtor. For instance, if a person, as a defendant in a
lawsuit, incurs a judgment for $100,000 and if that judgment debtor has
$50,000 in a bank account, a creditor may be able to garnish the $50,000
in the bank account to partially satisfy the judgment debt.
Bank deposits are the
most commonly garnished debt. Bank deposits can be reached regardless of
the account name if the funds are owed to the judgment debtor. Of
coarse, community funds likewise can be garnished.
Contents of a safety deposit box can also be garnished. The bank
can be sued in a garnishment action to obtain the contents of the safety
deposit box.
I. Garnishment Of
Stock Certificates or Promissory Notes To Satisfy A Judgment
Judgment creditors can
obtain your stock through the garnishment process. Creditors can seize
certificates held by your or held for you by a third party, i. e. a
mutual fund, stock broker, etc. Monies that are owed to a judgment
debtor in the form of a promissory note can be garnished.
J. Trust Funds In
Which The Debtor Is The Beneficiary
Monies from a trust
fund can be subject to payment of the beneficiary's debts if the trust
fund fails to contain what is known as a "spend thrift
clause". A spend thrift clause prohibits the beneficiary's creditor
from attaching the trust and taking the moneys earmarked for the
beneficiary out of the trust and then payment of the same to the
creditor. Even if a spend
thrift clause is included in a trust, once from the trust are paid to
the debtor, they can then be garnished.
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VII. WHAT ARE SOME OF
THE CONSEQUENCES OF DYING WITHOUT A WILL IN TEXAS?
The State bar of Texas
and the American Bar Association, as well as most state bars, recommend
that every adult person have a will.
If you die without a will, you are considered to have died
intestate. Consequently, your property will be distributed pursuant to
the state's probates code provisions relating to intestacy rather than
at your direction.
A. Hardships
Imposed By Dying Intestate (Without A Will)
1). Increased Cost.
Perhaps one of the most important reasons for having a will is to
streamline and reduce the probate process and to simplify the winding up
one's financial affairs. Intestacy can create hardships for your family and can
significantly increase the cost of closing out your financial affairs.
It may cost your heirs significantly more money to have your estate
administered if you have not executed a valid will which appoints an
Independent Executor to serve without the requirement of posting a bond.
2). Loss of an
Independent Executor. If you had a will and the will provided for the
appointment of an independent executor to serve without bond, the cost
of probating your will and winding up and administering you estate would
have been relatively inexpensive compared to what it can cost if the
court must appoint an executor to administer the estate.
The court appointed administrator may have to post a bond and
have his or her actions approved by the probate court prior to winding
the affairs of your estate.
3). The Texas Probate
Code allows a person to name an independent executor in his or her will.
The independent executor can very quickly and inexpensively wind up your
affairs, pay your bills, sell unneeded assets, and distribute your
property according to the terms of your will. One aspect of this
procedure that makes it so quick and cheap, is that the executor does
not have to obtain court approval for the above actions.
The executor is only
required to file the will for probate, attend the probate hearing, take
the oath to serve as the executor, obtain letters of testamentary (to
act for the estate) and then file an inventory and an appraisement that
lists the property owned by the deceased.
The executor is entitled to pay the debts and distribute the
assets of the estate without court supervision. This saves a lot of time
and a lot of attorney's fees!
This is a very cost
efficient way of handling probate since your estate only pays for the
attorney's time in getting the will approved by the probate court.
Thereafter your estate does not have to pay the attorney to obtain court
approval every time the executor wants to pay bills, sell property or
distribute the assets to the beneficiaries.
You may lose that right if you die without a will because the
probate court may supervise the entire distribution of the estate.
The estate can then be eaten up by attorneys fees from court
appointed attorneys and receivers as opposed to the being paid directly
to your heirs and beneficiaries.
The problem in Texas
without a will is that you lose your free agency to decide how you want
your property and assets distributed and plan for your family. You now
defer to the state's intestacy laws, which may or may not be acceptable
to you. You also increase the probate process and cost. The moral of the
story is that every adult should have a will.
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VIII. LIVING TRUSTS
AVOIDING PROBATE AND PROTECTING ASSETS
A. What Is A Trust?
A trust is a legal
arrangement whereby property may be given by a donor or trustor to a
trust for the use and benefit of another person known as the
beneficiary.
Trusts are useful for
protecting and preserving property and in some instances in reducing tax
liability. Trusts may be created and effective while the donor is alive
or may take effect at the donor's death. The person who controls the
trust property is known as the trustee. The trustee acts for in behalf
of the beneficiary named in the trust document.
A common trust, known
as the revocable living trust, is used frequently by estate planners. It
has some advantages and some disadvantages. A living trust is created
while the donor is alive. A trust which is typically created in a
donor's will and becomes effective upon the donor's death is known as a
testamentary trust.
The donor can also be
both a beneficiary and the trustee. This means that a donor can have
full control over all of the assets placed into the trust. Note there
may be some tax considerations which would suggest some third person be
named as the trustee, however you should discuss tax consequences of
trust and estate planning with a qualified tax advisor such as a CPA
(Certified Public Accountant) or tax / estate planning attorney.
B. Living Trusts
A living trust is
therefore a trust which is created during the donor's lifetime whereby
property is placed into the trust for the use and benefit of the parties
named in the trust agreement. The donor can be one of the beneficiaries
named in the trust. To
create a trust the donor transfers ownership of the assets that he or
she would like to place in the trust from himself as an individual to a
trustee, who will serve as trustee of the trust.
Trusts should always
be memorialized with a written document. Once the donor transfers money
from himself to the trust, the assets are no longer in his or her
personal name, this gives rise to the ability of a trust to reduce or
avoid probate when a person dies. If all of a person's assets are in the
name of a trust when a donor dies then obviously there is nothing to
probate.
In a living will the
donor transfers his or her property to the trust, then the donor names a
trustee. If the donor remains as trustee, then he or she maintains full
control over all his or her assets which are contained in the trust. The
donor can manage & use the property, including buying, selling,
leasing, giving or spending as he or she sees fit.
C. What Are Some
Advantages Of Having A Living Trust?
1). Avoiding Probate.
The property placed in the living trust does not have to be probated.
Those assets would be given directly to the beneficiaries pursuant to
the terms of the trust agreement thus avoiding the expense and delay of
probating a will.
Texas, as well as some
other states, have a simplified and an inexpensive probate system,
therefore a living trust may not be as desirable in Texas as compared to
some other states. Since Texas has an efficient probate system, many
Texas attorneys still prefer the use of a conventional will and having
the will probated instead of setting up a living trust.
One reason for this is that in Texas a person is allowed to name
an independent executor who can probate the will and act without posting
a bond and act without direct court supervision concerning the
administration of the estate. The independent administration-without
bond therefore reduces the cost of probate and simplifies the process.
Avoiding probate costs
& expense can become a significant expense if the donor owns real
property in more than one state. The use of a living trust can
circumvent the need for probate proceedings in other states where
property is owned. A probate in Texas generally will not transfer title
to real estate in other states to the heirs in a state other than Texas,
therefore an ancillary or another probate is generally required to
transfer property to the named beneficiaries when the property is owned
in more than one state. Consequently,
in this situation, a living trust could avoid some probate expense.
2) More Flexibility
With A Living Trust. Another
benefit of a living trust is its flexibility. The donor can select
himself or any other person to be the trustee. The trustee then has full
control over the assets in the trust as dictated by the terms of the
trust. If the donor is the
trustee he or she can change or alter the terms of the trust at anytime.
The donor can revoke
or cancel the trust at anytime if he or she is the trustee. When the
donor dies, the living trust, which actually is a revocable living trust
states how and when the donor's property shall be distributed. Assets
can be distributed to the beneficiaries in the time periods, amounts,
and manner as stated in the trust document.
For instance, the donor can specify that a certain amount of
money should be used to finance children's or grandchildren's education.
Likewise the donor could reserve or specify that from the estate could
be used for payment of medical expenses or special needs of his or her
beneficiaries such as a disabled or handicapped children.
3) Privacy.
The living trust document is generally not filed with the probate
court, therefore its terms are not open for inspection by the public. On
the other hand a will must be filed with the probate court to be
admitted to probate. It then becomes a public document. The will may
then be inspected and reviewed as any other public document. Therefore,
if you are interested in complete privacy, a trust may be preferable to
a will.
4) Litigation and
Contest. Law books are full
of suits where unhappy heirs have sought to contest deceased person's
will. A will can be contested if it can be proved that the person
writing the will, the testator, was unduly influenced to make gifts to
one person or another or that some one in a position of trust benefited
in the will by unduly influencing the testator. The unhappy relatives
can argue that some other party inserted their desires in the testator's
will due to their position of trust.
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IX. HOW TO OWN
PROPERTY
Property should be
owned so that the most protection allowed by law is afforded.
What we mean by this is that you should analyze the source of
income and the possible consequences or contingencies that may be tied
to the receipt and production of said income. Today, most people own
property in Joint Tenancy. Property
held jointly with rights of survivorship may provide some asset
protection, but at the same time, creates liabilities. The reason being
that if two parties have equal right to control or own property, in the
event one party suffers a liability, all of said property may be taken
by that party's creditors, and thereby deprive the other owner from his
or her ownership in that property.
Likewise, one should operate
his or her business so that they receive the maximum protection allowed.
One partner can easily be liable for the wrongful conduct of
another partner. Accordingly, there are many different entities that afford
protection depending on ones needs.
For example, an individual may wish to utilize a Family Limited
Partnership or a Spendthrift Trust to protect individual assets. Whereas a business may wish to operate as a Limited Liability
Company or Corporation to shelter its owners from liability.
What works best for each person or business depends on
circumstances specific to that individual or business.
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CONCLUSION
Asset protection is
available, however you must carefully analyze your income and assets.
Then determine the best entity to hold the assets while still deriving
the income. Thereafter you
must follow all corporate or partnership rules to enjoy the protection
that the law affords, failure to follow the tax or state rules can void
the protection you would have otherwise received.
We hope this article
illustrates some of the reasons why you should have your business and
personal affairs reviewed or managed by competent tax, financial and
legal professionals. Of
coarse if we can answer any questions or be of any help please let us
know by email, phone, or simply filling out the inquiry form on this web
site.
Article Adapted From
Westlaw
Examples
of Asset Protection
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